THE JOHN MARSHALL
REVIEW OF INTELLECTUAL PROPERTY LAW
REVIEW AND REFLECTION: COPYRIGHT HEARINGS AND RELATED DISCOURSE IN THE
NATION’S CAPITAL
MARIA A. PALLANTE
ABSTRACT
On February 28, 2014, the Register of Copyrights of the United States and Director of the U.S.
Copyright Office Maria A. Pallante delivered a keynote speech on the copyright hearings and related
discourse in the nation’s capital. The speech was given at The John Marshall Law School’s 58th
Annual Intellectual Property Conference. This article is based on her speech at the Conference.
Copyright © 2014 The John Marshall Law School
Cite as Maria A. Pallante, Review and Reflection: Copyright Hearings and Related
Discourse in the Nation’s Capital, 13 J. MARSHALL REV. INTELL. PROP. L. 487 (2014).
REVIEW AND REFLECTION: COPYRIGHT HEARINGS AND RELATED
DISCOURSE IN THE NATION’S CAPITAL
MARIA A. PALLANTE*
It is an honor to join you today at The John Marshall Law School for the 58th
Annual Intellectual Property Law Conference. I have enjoyed speaking with the
many professors and practitioners who have gathered here around so many
important issues of copyright, patent, and trademark law. Even in the February
cold, I have enjoyed the bright sun and public art that make this city so spectacular.
As you all know, the immeasurably talented Harold Ramis died a few days ago,
and it seems both timely and appropriate to refer to his legacy as a writer, actor, and
director, including for such major works as National Lampoon’s Animal House,
Caddyshack, and Groundhog Day. “Chicago still remains a Mecca of the Midwest,”
he once said. “People from both coasts are kind of amazed how good life is in
Chicago, and what a good culture we’ve got. You can have a pretty wonderful artistic
life and never leave Chicago.”1
Of course, where there are artists, there are copyright issues. In my remarks, I
would therefore like to describe for you the copyright conversation that is taking
place in the Nation’s Capital this year, a conversation that is suddenly and
remarkably active. It is best characterized as a state of purposeful review, in which
government actors are working with a broad variety of stakeholders through public
comments, hearings, roundtables, discussion documents, policy studies, and
regulatory proceedings for the purpose of identifying gaps in the law and considering
or revisiting possible solutions.
Across the government, the process is collaborative and complementary. It
involves the Congress, the Copyright Office, the Department of Commerce (including
the Patent and Trademark Office), and other federal agencies (in addition to a
number of important cases moving through the courts). This kind of activity has
been building for some time. Indeed, on some issues we have had more than a decade
of deliberation. Nonetheless, the amount of governmental focus in the past twelve
months is remarkable in both its breadth and pace. And many people seem to agree
that a 21st century copyright law will require a mix of legislative updates, regulatory
improvements, and voluntary agreements or other private orderings amongst core
industries.
I believe there is wide recognition that the U.S. statute is showing the strain of
its age, but among reasonable people there is also disagreement as to whether this is
merely frustrating or inherently problematic. The Copyright Act as written is a law
about copies. It was negotiated in the 1950s and 1960s and enacted in 1976. Its
Internet overlay—the Digital Millennium Copyright Act (“DMCA”)—was enacted in
* Maria A. Pallante is the Register of Copyrights of the United States and Director of the U.S.
Copyright Office. This is a version of the lecture delivered on February 28, 2014 at The John
Marshall Law School’s 58th Annual Intellectual Property Law Conference.
1 See
Harold Ramis—Biography, INTERNET MOVIE DATABASE, http://www.imdb.com/
name/nm0000601/bio?ref_=nm_dyk_qt_sm#quotes (last visited May 13, 2014).
488
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1998, long enough ago that cloud storage, personal tablets, and the software in our
automobiles were futuristic. Both the underlying statute and the DMCA have served
us well, but we should not be surprised that they are an imperfect fit today. Thus,
the question becomes whether and how to make adjustments.
Last March, I asked Congress to reflect on the copyright law of the past two
centuries and think about “the next great copyright act.” In my view, it is no longer
viable to proceed piecemeal with solutions. Rather, we need to consider the ways in
which provisions of the law relate to one another and to the statute as a whole.
Further, we must consider whether they are flexible and forward-leaning enough to
meet the challenges of our digital world. Moreover, because the dissemination of
content is so pervasive to life and business in the 21st century, I believe it is
important to make the law as clear and certain as possible for those who need to
navigate it.2 As Register, I am also concerned that the copyright law is not working
very well for authors. Consider this statement from Scott Turow, President of the
Authors Guild. Speaking in the context of the Kirtsaeng decision3 and the impact of
cheap imports on the U.S. market, he said, “It seems almost every player—
publishers, search engines, libraries, pirates and even some scholars—is vying for
position at authors’ expense . . . . The value of copyrights is being quickly
depreciated . . . .”4
At the same time, the posture of ongoing litigation in the area of fair use (with
respect to activities by commercial entities as well as libraries and universities) has
complicated policy efforts in the area of exceptions and limitations.5 Most copyright
exceptions were enacted in the analog era and require updating so that good faith
institutions acting in the public interest can carry out certain narrowly-tailored
activities regarding books, films, music, photographs, and software without the need
to seek the prior express permission of copyright owners. More generally, activities
of the past decade, like mass digitization and the display and dissemination of
copyrighted works, call out for a recalibration of the legal framework, not only to
provide parameters for compelling activities but also to ensure the ongoing viability
of the exclusive rights of Section 106 and corresponding remuneration for authors,
which is also in the public interest.6
2 The Register’s Call for Updates to U.S. Copyright Law, Hearing Before the Subcomm. on
Courts, Intell. Prop. and the Internet of the H. Comm. on the Judiciary, 113th Cong. 7 (2013)
(statement of Maria A. Pallante, Register of Copyrights) [hereinafter Register’s Call]; see also Maria
A. Pallante, The Next Great Copyright Act, 36 COLUM. J.L. & ARTS 315, 323 (2013) (emphasizing
that “we need a clearer copyright act for a rather simple reason: more and more people are affected
by it”).
3 Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1371 (2013).
4 Scott Turow, The Slow Death of the American Author, N.Y. TIMES, Apr. 7, 2013, at A21.
5 See generally Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282, 293–94 (S.D.N.Y. 2013);
Brief for Appellees, Authors Guild, Inc. v. Google Inc., Nos. 12–2402, 12–3200 (2d Cir. Feb. 8, 2013);
Authors Guild, Inc. v. HathiTrust, 902 F. Supp. 2d 445, 456, 464 (S.D.N.Y. 2012); Brief for Higher
Education Ass’ns as Amici Curiae Supporting Appellees, Authors Guild, Inc. v. Hathitrust, No. 12–
4547-cv (2d Cir. June 4, 2013); Cambridge Univ. Press v. Becker, 863 F. Supp. 2d 1190, 1223 (N.D.
Ga. 2012); Brief for Am. Ass’n of Univ. Professors et al. as Amici Curiae Supporting Appellees,
Cambridge Univ. Press v. Becker, Nos. 12–14676, 12–15147 (11th Cir. Apr. 25, 2013).
6 See, e.g., U.S. COPYRIGHT OFFICE, REPORT ON ORPHAN WORKS 1, 2, 4, 5, 7 (2006), available at
http://www.copyright.gov/orphan/orphan-report-full.pdf; U.S. COPYRIGHT OFFICE, THE SECTION 108
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490
On April 24, 2014 (on the occasion of World Intellectual Property Day), House
Judiciary Chairman, Bob Goodlatte, announced his intention to assess the law,
stating, “a wide review of our nation’s copyright laws and related enforcement
mechanisms is timely.”7
The Committee has held numerous hearings since
Chairman Goodlatte’s announcement and will continue to do so throughout the 113th
Congress, covering most of the high-level themes of the day.8 While this review
process is full of preludes and possibilities, I should be clear that there is no stated
agenda or prescription at this time. Rather, the Committee’s Members are taking
stock, in my view, reflecting both a fundamental understanding of legal principles
and an insightful appreciation for the digital era. This leadership is gratifying, as it
is Congress and Congress alone that has the authority to weigh the public good and
broader equities of authorship and access, irrespective of any one set of facts. The
Supreme Court confirmed both this role and the goal in Eldred v. Ashcroft: “As we
read the Framers’ instruction, the Copyright Clause empowers Congress to
determine the intellectual property regimes that, overall, in that body’s judgment,
will serve the ends of the Clause.”9
STUDY GROUP REPORT i (2008), available at http://www.section108.gov/docs/Sec108StudyGroup
Report.pdf; U.S. COPYRIGHT OFFICE, LEGAL ISSUES IN MASS DIGITIZATION: A PRELIMINARY
ANALYSIS AND DISCUSSION DOCUMENT i, 2, 8, 9, 15 (2011), available at http://www.copyright.gov/
docs/massdigitization/USCOMassDigitization_October2011.pdf;
Orphan
Works
and
Mass
Digitization, 77 Fed. Reg. 64,555, 64,555 (Oct. 22, 2012); Copyright Exceptions for Libraries in the
Digital Age:
Section 108 Reform, COLUM. L. SCH. (Feb. 8, 2013), available at
http://web.law.columbia.edu/kernochan/symposia/section-108-reform; Orphan Works and Mass
Digitization, Request for Additional Comments and Announcement of Public Roundtables, 79 Fed.
Reg. 7706, 7706, 7707 (Feb. 10, 2014).
7 See Press Release, Comm. on the Judiciary, Chairman Goodlatte Announces Comprehensive
Review of Copyright Law (Apr. 24, 2013), available at http://judiciary.house.gov/index.cfm/pressreleases?ID=1B5C521A-D006-B517-9949-43E692E1E52E [hereinafter Goodlatte Announcement].
8 On the subject of copyright review, the House Subcommittee on Courts, Intellectual Property,
and the Internet has held the following hearings to date: A Case Study for Consensus Building: The
Copyright Principles Project, Hearing Before the Subcomm. on Courts, Intell. Prop. and the Internet
of the H. Comm. on the Judiciary, 113th Cong. (May 16, 2013); Innovation in America: The Role of
Copyrights, Hearing Before the Subcomm. on Courts, Intell. Prop. and the Internet of the H. Comm.
on the Judiciary, 113th Cong. (July 25, 2013); Innovation in America: The Role of Technology,
Hearing Before the Subcomm. on Courts, Intell. Prop. and the Internet of the H. Comm. on the
Judiciary, 113th Cong. (Aug. 1, 2013) ; The Role of Voluntary Agreements in the U.S. Intellectual
Property System, Hearing Before the Subcomm. on Courts, Intell. Prop. and the Internet of the H.
Comm. on the Judiciary, 113th Cong. (Sept. 18, 2013); The Rise of Innovative Business Models:
Content Delivery Methods in the Digital Age, Hearing Before the Subcomm. on Courts, Intell. Prop.
and the Internet of the H. Comm. on the Judiciary, 113th Cong. (Nov. 26, 2013); The Scope of
Copyright Protection, Hearing Before the Subcomm. on Courts, Intell. Prop. and the Internet of the H.
Comm. on the Judiciary, 113th Cong. (Jan. 14, 2014); The Scope of Fair Use, Hearing Before the
Subcomm. on Courts, Intell. Prop. and the Internet of the H. Comm. on the Judiciary, 113th Cong.
(Jan. 27, 2014); Section 512 of Title 17, Hearing Before the Subcomm. on Courts, Intell. Prop. and the
Internet of the H. Comm. on the Judiciary, 113th Cong. (Mar. 13, 2014); Preservation and Reuse of
Copyrighted Works, Hearing Before the Subcomm. on Courts, Intell. Prop. and the Internet of the H.
Comm. on the Judiciary, 113th Cong. (Apr. 2, 2014); First Sale Under Title 17, Hearing Before the
Subcomm. on Courts, Intell. Prop. and the Internet of the H. Comm. on the Judiciary, 113th Cong.
(June 2, 2014). Witness statements and video recordings of each hearing are available at
http://judiciary.house.gov/index.cfm/hearings.
9 Eldred v. Ashcroft, 537 U.S. 186, 222 (2003).
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As we move through the review process and the many competing and
challenging issues, we do have some helpful guideposts, for example: how
enforcement provisions relate to the scope of an author’s exclusive rights; how
exceptions relate to fair use; how fair use relates to licensing; how licensing relates to
the first sale doctrine; how international developments relate to American
jurisprudence; and how legislation relates to voluntary solutions, negotiated
practices or codes of conduct in the marketplace.
Meanwhile, our colleagues in the Executive Branch are just as busy. On July
25, 2013, the U.S. Department of Commerce Internet Policy Task Force issued a
discussion document entitled Copyright Policy, Creativity, and Innovation in the
Digital Economy (the “Green Paper”), drawing on the Task Force’s 2010 “listening
tour” and public process.10 In announcing the paper, Commerce Secretary Penny
Pritzker, who is of course a notable Chicagoan, said: “[e]nsuring that copyright
policy provides strong incentives for creativity, while promoting innovation in the
digital economy, is a critical and challenging task . . . . As the Nation embarks on a
fresh debate about how best to strike the copyright balance, this Green Paper is an
important contribution.”11
The Task Force has proposed and commenced two primary activities that will
play out over the course of the next year. These are: (1) establishing a multistakeholder dialogue on improving the operation of the notice and takedown system
under the DMCA; and (2) soliciting public comment and convening roundtables on a
number of policy issues, including, (a) the legal framework for the creation of
remixes;12 (b) the relevance and scope of the first sale doctrine in the digital
environment; (c) the application of statutory damages in the context of individual
file-sharers and secondary liability for large-scale online infringement; and (d) the
appropriate role of government, if any, to help improve the online licensing
environment, including access to comprehensive public and private databases of
rights information.13 On this last point, the Task Force has called the Copyright
10 See U.S. DEP’T OF COMMERCE INTERNET POLICY TASK FORCE, REPORT: COPYRIGHT POLICY,
CREATIVITY,
AND
INNOVATION
IN
THE
DIGITAL
ECONOMY
(2013),
available
at
http://www.uspto.gov/news/publications/copyrightgreenpaper.pdf [hereinafter GREEN PAPER].
11 Id. at ii.
12 This issue has come up in Congressional hearings as well. Compare The Scope of Fair Use,
Hearing Before the Subcomm. on Courts, Intell. Prop. and the Internet of the H. Comm. on the
Judiciary,
113th
Cong.
6
(2014)
(statement
of
David
Lowery)
available
at
http://judiciary.house.gov/index.cfm/hearings?ID=8E18A9AA-1AA4-4D7C-8EBF-0284862EC44B
(“Advocates for further expansion of fair use often appeal to the noncommercial nature of many
remixes and lyrics annotations sites . . . . This argument fails to consider that commercial
intermediaries distribute these works and profit from their widespread dissemination.”) (emphases
in original), with The Scope of Fair Use, Hearing Before the Subcomm. on Courts, Intell. Prop. and
the Internet of the H. Comm. on the Judiciary, 113th Cong. 6 (2014) (statement of Naomi Novik)
available
at
http://judiciary.house.gov/index.cfm/hearings?ID=8E18A9AA-1AA4-4D7C-8EBF0284862EC44B (“Congress could add a specific exemption for noncommercial remix that would
supplement fair use, the same way that libraries and teachers have specific exemptions that provide
a clear safe harbor.”).
13 GREEN PAPER, supra note 10, at 101–03.
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492
Office’s role in creating and making available ownership information through its
public databases “a keystone for the development of the online marketplace.”14
One issue that is of fundamental importance across the government is whether
our existing statute adequately protects the rights of copyright owners to authorize
the communication of their works online, as required by the World Intellectual
Property Organization (“WIPO”) Internet Treaties.15 The United States implemented
these treaties in 1998 when it enacted the DMCA. At that time, the Clinton
Administration, Congress, and the Copyright Office all concluded that no express
amendments were required because such authority was already governed by the
exclusive rights of reproduction, distribution, public display, and/or public
performance (any one of which alone or in combination might suffice in a given
circumstance).16 Nonetheless, courts have been inconsistent in their opinions in the
intervening years—for example, on the question of whether infringement requires
actual distribution—raising questions of whether clarification would be beneficial.17
Congress rejuvenated the issue in a hearing last month. David Nimmer, a law
professor and current author of the Nimmer on Copyright treatise, testified that
clarification is appropriate but not imperative. He said:
14 Copyright Policy, Creativity and Innovation in the Digital Economy, Department of
Commerce Public Meeting 206 (Dec. 12, 2013) (statement of Shira Perlmutter, Chief Policy Officer
and Director, International Affairs, United States Patent and Trademark Office), available at
http://www.uspto.gov/ip/global/copyrights/121213-USPTO-Green_Paper_Hearing-Transcript.pdf.
15 WIPO Copyright Treaty art. 8, Dec. 20, 1996, 36 I.L.M. Article 8 states that:
[A]uthors of literary and artistic works shall enjoy the exclusive right of authorizing any
communication to the public of their works, by wire or wireless means, including the
making available to the public of their works in such a way that members of the public
may access these works from a place and at a time individually chosen by them.
Id.; WIPO Performances and Phonograms Treaty arts. 10, 14, Dec. 20, 1996, 36 I.L.M. 76. (noting
that Articles 10 and 14 provide the making available right to performers whose performances are
fixed in sound recordings (phonograms) and to producers of sound recordings).
16 See, e.g., Piracy of Intellectual Property on Peer-to-Peer Networks, Hearing Before the
Subcomm. on Courts, Intell. Prop. and the Internet of the H. Comm. on the Judiciary, 107th Cong.
114 (2002) (letter from Marybeth Peters, Register of Copyrights).
17 See, e.g., Diversey v. Schmidly, 738 F.3d 1196, 1204–05 (10th Cir. 2013) (finding that making
a work available to the public through a library constitutes distribution, but declining to apply that
principle to Internet file sharing); A&M Records v. Napster, Inc., 239 F.3d 1004, 1014, 1027 (9th Cir.
2001) (concluding that distribution encompasses making works available through a peer-to-peer
filing sharing network); Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203
(4th Cir. 1997) (finding that making a work available to the public through a library constitutes
distribution); Nat’l Car Rental Sys., Inc. v. Computer Assocs. Int’l., Inc., 991 F.2d 426, 430 (8th Cir.
1993) (rejecting the notion that making a work available without more violates the distribution
right); Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210, 1218 (D. Minn. 2008) (stating that
Congress’s failure to mention making available in the statute “indicates its intent that an actual
distribution or dissemination is required in § 106(3)”); Atl. Recording Corp. v. Howell, 554 F. Supp.
2d 976, 983 (D. Ariz. 2008) (“Merely making an unauthorized copy of a copyrighted work available to
the public does not violate a copyright holder’s exclusive right of distribution.”); London-Sire
Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 168 (D. Mass 2008) (asserting that “[m]erely because the
defendant has ‘completed all the steps necessary for distribution’ does not necessarily mean that a
distribution has actually occurred.”).
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Both sides of the “making available” issue recognize that copyright owners
enjoy the exclusive right to control distribution of their works; their only
point of disagreement concerns the quantum of proof needed to
demonstrate that distribution took place (simple uploading for proponents
of the right, uploading plus proven downloading for its opponents).18
Last week, pursuant to a Congressional request, the Copyright Office
commenced a policy study and set of public inquiries on these and related points. We
ask, for example, how does the existing bundle of exclusive rights cover digital ondemand transmissions such as peer-to-peer networks, streaming services, and music
downloads? How have foreign laws interpreted and implemented the relevant
provisions of the WIPO Internet Treaties? And a practical question: what is the
feasibility and necessity of amending U.S. law to strengthen or clarify our law in this
area?19
Questions like these are especially important to the music marketplace. In the
past decade, as the sale of physical formats has declined, songwriters and recording
artists have suffered from a one-two punch of online infringement and reduced
royalties paid by new companies operating legitimate digital services. The statutory
license that governs the reproduction and distribution of musical works (the so-called
“Section 115” license) is more than a century old and operates according to a song-bysong, case-by-case framework. By contrast today, the typical online music service
may strive to offer consumers access to millions of songs.
With respect to the public performance right, the two major licensing
organizations for musical works have long operated under consent decrees because of
the inherent anticompetitive nature of collective business models and blanket
licensing. Meanwhile, the owners of sound recordings remain locked in a stalemate
with broadcasters—awaiting a public performance right that would ensure royalties
from both digital transmissions and terrestrial radio—in keeping with worldwide
norms. The Copyright Office is currently studying these issues, and more generally,
the impact of the various rate-setting standards within and across different music
delivery platforms, keeping in mind the complexity and fragmented nature of the
music licensing process.20 Exacting a fair and flexible framework for music is an
important policy objective and I hope that you will find the time to participate in our
public inquiry and forthcoming public meetings.
Enforcement measures are a perennial challenge for music and other works in
the online world, especially because the criminal code does not impose felony liability
for violations of the public performance right. The Copyright Office sees this as a gap
in the law now that streaming is a primary means by which copyright owners offer
18 Policy Considerations Relating to Copyright Law’s “Making Available” Right, Hearing Before
the Subcomm. on Courts, Intell. Prop. and the Internet of the H. Comm. on the Judiciary, 113th
Cong.
5
(2014)
(statement
of
David
Nimmer),
available
at
http://docs.house.gov/meetings/JU/JU03/20140114/101642/HHRG-113-JU03-Wstate-NimmerD20140114.pdf.
19 Study on the Right of Making Available; Comments and Public Roundtable, 79 Fed. Reg.
10,571, 10,573 (Feb. 25, 2014).
20 Music Licensing Study:
Notice and Request for Public Comment, 78 Fed. Reg. 14,739,
14,739 (Mar. 17, 2014).
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their music and films to consumers, and correspondingly, a primary means by which
criminal actors offer these works illegally. The issue, sometimes shorthanded as
“felony streaming,” has been the subject of several Congressional hearings over the
past few years.21 People at least seem to agree on the basics, namely that law
enforcement requires 21st century legal tools, relief should be effective but narrowly
tailored, non-infringing expression should be protected, and attention to due process
is essential. The Green Paper restates these issues as well, referring to the Obama
Administration’s prior call to Congress “to enact legislation adopting the same range
of penalties for criminal streaming of copyrighted works to the public as now exists
for criminal reproduction and distribution.”22
On the other end of the enforcement spectrum, the Copyright Office delivered a
report to Congress in September 2013, noting the particularly acute impact of small
claims issues on individual creators.23 It also cites the legitimate frustrations of
persons and businesses responding to such claims, who themselves may be smaller
actors facing substantial litigation costs. In summary, the Office recommends that
Congress create a centralized small claims tribunal under the Register’s supervision
to administer streamlined proceedings through online and teleconferencing facilities
without the requirement of personal appearances. The tribunal would be a voluntary
alternative to federal court with a focus on infringement cases valued at no more
than $30,000 in damages, and its decisions should be binding only with respect to the
parties and claims at issue.
Voluntary practices are just as important to a functioning law. In general, if one
sees the copyright ecosystem as one where everyone benefits, then it follows that
everyone, including the Internet Service Providers (“ISPs”), advertisers, payment
processors, and search engines, should contribute to making it as robust and lawful
as possible. And while the legal framework should ensure effective measures for both
civil and criminal liability, voluntary practices can do quite a lot to mitigate online
infringement; therefore, they merit support from the U.S. government.
Indeed, voluntary measures were a signature theme of the White House’s
Intellectual Property Enforcement Coordinator (“IPEC”) in recent years. As noted in
the 2012 IPEC Annual Report on Intellectual Property Enforcement, the
Administration has:
adopted the approach of encouraging the private sector (including ISPs,
credit card companies, and online advertisers) to reach cooperative
voluntary agreements to reduce infringement that are practical, effective,
21 See The “Stop Online Piracy Act,” Hearing on H.R. 3261 Before the H. Comm. on the
Judiciary, 112th Cong. 2 (2011) (statement of Maria A. Pallante, Register of Copyrights); Promoting
Investment and Protecting Commerce Online: The ART Act, the NET Act and Illegal Streaming,
Hearing Before the Subcomm. on Intellectual Property, Competition and the Internet of the H. Comm.
on the Judiciary, 112th Cong. (2011) (statement of Maria A. Pallante, Register of Copyrights);
Oversight of Intellectual Property Law Enforcement Efforts, Hearing Before the S. Comm. on the
Judiciary, 112th Cong. 1 (2011) (statement of Hon. Patrick Leahy, U.S. Senator).
22 GREEN PAPER, supra note 10, at 3.
23 U.S. COPYRIGHT OFFICE, COPYRIGHT SMALL CLAIMS:
A REPORT OF THE REGISTER OF
COPYRIGHTS 1, 3 (2013), available at http://www.copyright.gov/docs/smallclaims/uscosmallcopyrightclaims.pdf.
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and consistent with protecting the legitimate uses of the Internet and our
commitment to principles of due process, free speech, fair use, and
privacy.24
The IPEC helped broker a memorandum of understanding among several ISPs,
major and independent music labels, and movie studios. This, in turn, helped
establish the framework for the Center for Copyright Information (“CCI”) and the
Copyright Alert System (through which the parties work together to send notices to
ISP subscribers).25 The system has been operational since February 2013 and we are
all very interested in seeing the early results.
Back in Congress, the House Judiciary Committee made voluntary initiatives
the focus of a September 2013 Congressional hearing.26 In announcing the hearing,
Chairman Goodlatte stated the committee’s interest in “how these agreements have
been set up, what the benefits and risks are from entering into such agreements, if
the law should recognize their existence in some way, and whether there should be
some legal benefit to entering into such agreements for a company or its
customers.”27
Finally, as the Copyright Office works with both Congress and the
Administration, it is looking ahead and reflecting on its own role in the ever-evolving
copyright system. As noted by the Chairman: “[t]here is little doubt that our
copyright system faces new challenges today . . . . Even the Copyright Office itself
faces challenges in meeting the growing needs of its customers—the American
public.”28
Last fall, the Office completed two years of special projects designed to assess
the quality and efficiency of its core services and operations and prepare strategies
for future needs.29 The projects acknowledged the expectations of the copyright
community (both copyright owners and users of copyrighted works), and called for
input regarding certain weaknesses in the registration and recordation systems in
particular. Many such challenges are tied to the Office’s limited resources and its
24 EXEC. OFFICE OF THE PRESIDENT, 2011 U.S. INTELLECTUAL PROPERTY ENFORCEMENT
COORDINATOR ANNUAL REPORT ON INTELLECTUAL PROPERTY ENFORCEMENT 5 (Mar. 2012),
available at http://www.whitehouse.gov/sites/default/files/omb/IPEC/ipec_annual_report_mar2012
.pdf.
25 See
generally The Copyright Alert System, CTR. FOR COPYRIGHT INFO.,
http://www.copyrightinformation.org/the-copyright-alert-system/.
26 See, e.g., Role of Voluntary Agreements in the U.S. Intellectual Property System, Hearing
Before the Subcomm. on Courts, Intell. Prop., and the Internet of the H. Comm. on the Judiciary,
113th Cong. (2013) (statement of Rep. Coble).
27 Press Release, Comm. on the Judiciary, Subcommittee to Hold Hearings on Voluntary
Agreements (Sept. 17, 2013), available at http://judiciary.house.gov/index.cfm/2013/9/subcommitteeto-hold-hearing-on-voluntary-agreements.
28 Goodlatte Announcement, supra note 7.
29 See Register of Copyrights of the U.S. of Am., Priorities and Special Projects of the United
States Copyright Office One-Year Update, U.S. COPYRIGHT OFFICE 1 (2012), available at
http://www.copyright.gov/docs/priorities_oneyear.pdf; Register of Copyrights of the U.S. of Am.,
Priorities and Special Projects of the United States Copyright Office, U.S. COPYRIGHT OFFICE 1
(2011), available at http://www.copyright.gov/docs/priorities.pdf.
[13:487 2014] The John Marshall Review of Intellectual Property Law
496
business and technological capacities, and this was a major point of focus.30 A
variety of parties—authors organizations, publishers, music producers, and
technologists—addressed the reliability, security, and searchability of the Office’s
records. They also discussed recommendations for the user interface, quality of data
and public records, global identifiers and other metadata, digital repositories for
examined works, information architecture and infrastructure, and customer
experience; for instance, dashboards, instant messaging, and assistance during west
coast business hours.
Both the Copyright Office and its customers are interested in a more nimble set
of services and the collaboration required to get there. For example, new paradigms
might facilitate the exchange of business-to-business data between public and private
registries or provide an integrated online service by which persons could record
copyright transfers and other commercially relevant information with ease, making
such information more interoperable with the global marketplace.31
I discussed preliminary findings from these projects during a lecture before the
Copyright Society of the USA in November 2013. In doing so, I described the
increasingly sophisticated framework of copyright law, the dynamic and
commercially significant copyright marketplace, and what I trust will be the
beginning of an important period in which we plan for and invest in the Copyright
Office of the future.32 I encourage all of you to share your recommendations in the
current proceedings if you have not already done so.
Thank you for your kind attention and for inviting me to the Mecca of the
Midwest.
30 See Technological Upgrades to Registration and Recordation Functions, 78 Fed. Reg. 17,722,
17,722 (Mar. 22, 2013).
31 See Reengineering of Recordation of Documents, 79 Fed. Reg. 6636, 6636 (Feb. 4, 2014);
Strategic Plan for Recordation of Documents, 79 Fed. Reg. 2696, 2696, 2697, 2698, 2699 (Jan. 15,
2014).
32 See Maria A. Pallante, The Next Generation Copyright Office: What It Means and Why It
Matters, J. COPYRIGHT SOC’Y U.S.A. (forthcoming 2014).